Gwenan White | Trainee Solicitor

Pregnancy Discrimination: The Date of Decision

In the recent case of Really Easy Car Credit Ltd v Thompson, the Employment Appeal Tribunal (EAT) considered whether an employer required knowledge of pregnancy in order to be liable for automatic unfair dismissal and discrimination. The key question for the EAT was whether the decision to dismissal was made because of the pregnancy.

An employee’s dismissal will be automatically unfair in the reason for dismissal is connected to pregnancy under the Employment Rights Act. Therefore, when considering the reason for dismissal in this matter, the starting point was to identify the facts known by the employer at that time.

The Claimant was dismissed during her probationary period when the employer decided that she would be dismissed due to her “emotional volatility” and “failure to fit in with the Respondent’s work ethic.”  The Tribunal accepted that the decision was made before the Respondent was aware that the Claimant was pregnant. However, when arranging a meeting with the Claimant to tell her of this decision, the Respondent learned of the Claimant’s pregnancy and thereafter communicated the decision to her the following day.  Therefore, the Employment Tribunal held that the Respondent had the opportunity to review the decision in light of this knowledge, which “clearly had a bearing on the behaviour that the Respondent considered was the last straw” and the Respondent had failed to show that the dismissal was in no sense whatsoever related to the Claimant’s pregnancy.

The ET took the view that once the Respondent knew the Claimant was pregnant, “it must have been obvious… that the claimant’s attendance at hospital and her emotional state were pregnancy related.”

The Respondent successfully appealed this decision and the EAT identified that the legal tests to be applied required the tribunal to ask whether:

  • The Claimant’s pregnancy itself had been the reason or principal reason for her dismissal (for the unfair dismissal claim) and;
  • The decision to dismiss had been because of her pregnancy (for the discrimination claim).

Therefore, this required the Respondent to know of the Claimant’s pregnancy when it took the relevant decision and imposed no position obligation on the Respondent to revisit its decision after it learned of the pregnancy.

The EAT also observed that it would not be reasonable to assume that an emotional outburst must be related to pregnancy.

The EAT remitted the case to a differently constituted tribunal to expressly determine whether the Respondent re-examined their decision after they learned of the pregnancy and whether this was the reason or principal reason for dismissal.

Although the EAT’s decision was a win for the Respondent, it might yet lose if, on remission, the ET were to find that it made a positive decision to dismiss because of pregnancy.

If you are an employer or an employee, and you believe you are affected by issues raised from this decision or should you require any further information, please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Gwenan White

Gwenan White

Employment Law Team

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